This
case arises out of the September 19, 2012, police action at
which time plaintiff gave a suspect of a drug-related crime a
ride in his vehicle and was subsequently detained by
police.[1]See (ECF No. 56).

Plaintiff
states that while he was waiting for his overheated car to
cool down a van of undercover police officers seized both the
suspect and plaintiff. (Id.). Specifically,
plaintiff avers that he “was pushed into his car, had
his shoulder grabbed, chin slammed into the hood, and
handcuffed.” (Id. at 3) (citing (ECF No.
56-1)). Plaintiff submits that he was then cursed at by an
officer and put “in a chokehold.” (Id.
at 4) (citing (ECF No. 56-1)).

Plaintiff
further alleges that the officers then threw him “head
first into the floor of the van, ” hitting his face on
the floor and that he eventually lost consciousness after an
officer put his knee on his neck. (Id. at 4) (citing
(ECF No. 56-1)). Mr. Irish-Miller regained consciousness
after having been transported to a different location and
noticed his teeth felt broken. (Id.) (citing (ECF
No. 56-1)). He asserts that the officers then read him his
Miranda rights after an interrogation at the new
location. (Id.) (citing (ECF No. 56-1)).

b.
Plaintiff's claims

In his
amended complaint, plaintiff alleges the following claims:
(1) violation of the Fourth and Fourteenth Amendments against
all defendants; (2) municipal liability in relation to the
first claim, against all defendants; (3) negligent
supervision and training against LVMPD; (4) negligence and
gross negligence against all defendants; (5) violation of the
Eight and Fourteenth Amendments against the officers; (6)
negligence against the officer defendants; (7) assault and
battery against the officers; (8) battery against all
defendants; (9) intentional infliction of emotional distress
(“IIED”) against all defendants; (10) negligent
infliction of emotional distress against all defendants; (11)
negligence per se against all defendants; and (12) a
request for punitive damages.[2](ECF No. 21).

c.
Submitted arguments

Regarding
the constitutional allegations, defendants relevantly assert
qualified immunity and argue that there is no evidence that
an LVMPD policymaker's decision resulted in a violation
of plaintiff's constitutional rights. (Id.).

Against
the state-law allegations, the officers first claim
discretionary immunity. (Id.). Next, the officers
contest that they are not liable under IIED because their
conduct was neither extreme and outrageous nor willful, in
light of the totality of the circumstances. (Id.).
Third, defendants acknowledge that assault and battery
requires unlawful touching, but they contend that the contact
at issue was lawful. (Id.). Fourth, defendants
contend that there can be no liability based upon negligence
or negligent training because plaintiff has failed to
establish a breached duty. (Id.). Finally,
defendants state that punitive damages are inappropriate
because there is no “evil motive or intent, or . . . a
reckless or callous indifference to Plaintiff's
constitutional rights.” (Id. at 27).

Plaintiff
responds that there are relevant material disputes of facts
as to various challenged claims. See (ECF No. 56).
Next, plaintiff asserts that he was subjected to more than a
Terry stop and Officer Fryman cannot product
articulable facts supporting his decision to detain
plaintiff. (Id.). Third, he argues that the officers
used unreasonable force. (Id.). Fourth, plaintiff
pleads alternative forms of liability. (Id.). Fifth,
plaintiff asserts that the elements are met as to his claims
and, finally, that federal law permits punitive damages in
this case. (Id.).

II.
Legal Standard

The
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 323- 24 (1986).

For
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.

In
determining summary judgment, the court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, “[i]n such a case, the moving party has the
initial burden of establishing the absence of a genuine issue
of fact on each issue material to its case.”
Id.

By
contrast, when the non-moving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the non-moving party's evidence. See Adickes
v. S.H. Kress & Co.,398 U.S. 144, 159-60 (1970).

If the
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T. W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n,809 F.2d 626, 630 (9th Cir.
1987).

The
Ninth Circuit has held that information contained in an
inadmissible form may still be considered for summary
judgment if the information itself would be admissible at
trial. Fraser v. Goodale,342 F.3d 1032, 1036 (9th
Cir. 2003) (citing Block v. City of Los Angeles, 253
F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary
judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long
as the party satisfies the requirements of Federal Rules of
Civil Procedure 56.”)).

III.
Discussion

a.
Constitutional claims

1.
Qualified immunity

When a
plaintiff brings a claim under 42 U.S.C. § 1983,
government officials sued in their individual capacities may
raise the affirmative ...

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